The Founding of the American Republic 10; C. Carson

The United States had already wit nessed before 1789 many of the results of the fatal tendencies of republics. Monarchy had ever· and again been revived to solve the more tenacious problems of re publics. Could the United States be steered around the shoals on which other republics had foun dered? There were those who doubted it. After all, what would be the rock to anchor a govern ment against the storms without a monarch? The answer seemed to be that there must be no storms, but it was unrealistic. How could a country be induced to yield to precedent, tradition, and those founts of governmental stability - awe and obedience - without the bulwarks of established church, hereditary aristocracy, and mon archy? Perhaps it could not be done at all. But if it could be done, it would be because the best and Dr. Carson, noted lecturer and author, is living at present in Alabama. The articles of this series will be published as a book by Arlington House.

165 166 THE FREEMAN March most able men should be engaged in political leadership and that they should set examples which lesser men would follow in the course of tirne. The outstanding men had come to the fore and taken their places, as we have seen; it now remained to be seen if they could set a safe course. Erecting a Financial Structure It is all too easy to find fault with Hamilton and his programs. Much of what his political foes said against him and his programs was true. He did entertain great doubts about the political wisdom of the general populace. He was a nationalist who cared little enough about the integrity of the states, if he thought they had any. He was a mercantilist, or at least he was under the sway of the fag ends of mercantilist ideas. He was ambitions, aggressive, a broad con structionist, and did intrude in foreign affairs. Those of us who differ with him in the main thrust of his economic policies may cri t icize him for his protectionist and promanufacturing posture.

Yet, when all has been said against him and his programs, it should be granted that what he accomplished offsets. much of it. He emerges from an examination of his policies as one who, if he did not always do right, generally did well. There are few enough men with large VISIon, probably fewer who can conceive the pro grams necessary to realize it, and the number is quite small who will labor tenaciously to get them in operation. It is easy enough, as I say, to criticize hi~ financial pro gram; but which of the critics could establish the financial foun dations of a nation? Hamilton conceived a financial program which he hoped would provide the sinews of a nation. His task would have been hopeless enough if he had aimed only to get revenue to run the govern ment. Americans were loath to pay taxes of any kind, and politi cians had shown themselves all too willing to adopt expedients which would enable them to operate for a time without the onerous neces sity of taxes. But Hamilton want ed much more than a revenue. He wanted to establish the credit of the United States, when bank ruptcy was the obvious outlet.

And, he wanted to do so in such a way that would tie men of wealth and position to the government, get the people to look toward the United States government as the government, and make it clear that the general government would take care of national concerns. Hamilton's program was pre sented in a series of reports to Congress in 1790-91, and much of it as was enacted, which was most 1973 STEERING A COURSE FOR THE NATION 167 of it, was enacted during the same years. The main acts dealt with the acceptance and funding of the national debt, the assumption of state debts, the establishment of a Bank of the United States, and the establishment of an excise tax on whisky. Establishing the Credit of the United States Hamilton's first report, which was on the public credit, was pre sented January 14, 1790. In it, he argued vigorously that the do mestic debt as well as the foreign debt should be assumed at the full value originally contracted. There were many of the opinion that the domestic debt should be discount ed. Most of the obligations were held by speculators now, it was argued, men who had bought them at· a fraction of their face value and who stood to be greatly enriched if they were paid off at full value. Hamilton approached the subject from the angle ofes tablishing the credit of the gov ernment. "By what means is it to be effected ?" he asked. "The ready answer to which question is, by good faith; by a punctual performance of contracts. States, like individuals, who observe their engagements are respected and trusted, while the reverse is the fate of those who pursue an op posite conduct."

While the observance of that good faith, which is the basis of public credit, is recommended by the strong est inducements of political expedi ency, it is enforced by considerations of still greater authority. There are arguments for it which rest on the immutable principles of moral obli gation. And in proportion as the mind is disposed to contemplate, in the order of Providence, an intimate connection between public virtue and public happiness, will be its repug nancy to a violation of those princi ples. This reflection derives additional strength from the nature of the debt of the United States. It was the price of liberty. The faith of America has been repeatedly pledged for it, and with solemnities that give peculiar force to the obligation .. .1 Hamilton's propo~al to establish a fund for paying the national debt at face value was linked in the same bill with a plan for the assumption of state debts con tracted during the War for Inde pendence. Assumption of state debts was much more contro versial than the other matter. In fact, the idea bordered on the pre posterous, in view of past history.

At least some of the states had made headway in paying their debts; whereas, as yet, no United States government had demon strated either the willingness or ability to service any debt. More over, there were differences in 168 THE FREEMAN March size of debt from state to state. However,adjustments were made for this, Hamilton did some horse trading with the Vir'ginia delega tion, and both funding and as sumption passed. The United States issued new securities to re place the old, paid interest on them, and set aside funds to take care of them. No immediate prog ress was made, however, in actu ally paying off the debt. Even so, the credit of the United States be gan to show improvement. A United States Sank Hamilton's next major proposal was for a United States bank. He proposed that it should be char tered as a corporation by the Fed eral government, that the govern ment should subscribe to 20 per cent of the stock, and that the r,e mainder should come from private investors. Federal funds were to be deposited in it, and the bank was to issue paper money which would become the main currency of the United States. Jefferson argued that there was no author ity in the Constitution for char tering such a corporation, but Hamilton carried the field, and Washington signed the bank bill into law February 25, 1791. Stock in the bank sold within hours after it went on the market.

Congress passed an excise tax on whisky in March 1791. This was the first tax levied by the United States government to be borne directly by American pro ducers. It was much resented, par ticularly by western Pennsylvania farmers, who were accustomed to shipping their corn east in a liquid state. A rebellion broke out there in 1794, and it was put down by troops. Some Americans, at least, had felt the power of the new gov ernment directly. Protection ism Hamilton's most ambitious and extensive program was contained in his Report on Man uf actures which he presented in December of 1791. In it, he clothed the argu ment for government intervention in its most attractive apparel. He held ,forth a vision of America drawn together in fraternal bonds through the interdependence of manufacturers, shippers, and farmers. North and South, East and West, would be drawn to gether in a great economic cornu copia. Few could gainsay him that there were advantages to the divi sion of labor, to an American inde pendence of. foreign countries, or even that there was good reason to draw immigrants to American shores along with foreign capital.

All of this was attractive back ground to an argument for gov ernment aid to manufacturing. "Such aid must consist of pro1973 STEERING A COURSE FOR THE NATION 169 tective duties against competitive foreign manufactures, bounties for the establishment of new in dustries, premiums for excellence and quality of manufactured ar ticles,exemptions of essential raw materials from abroad from im port duties . . ., the encourage ment of inventions, improvement in machinery and processes by substantial grants ... , and, finally, the construction of roads and canals for a . . . flow of physical goods and materials."2 Too Much for Congress With such a program, however, Hamilton had bit off more than Congress could swallow. Even sup posing the program to be desir able, which many doubted, where was the authority in the Constitu tion to spend the tax moneys taken from the generality of the people for such purposes? Hamilton ar gued that the power was there in the general welfare clause. If this were so, Madison declared, then Hevery thing from the highest ob ject of state legislation, down to the most minute object of police would be thrown under the power of Congress."3 Thus, the mainele ments of Hamilton's grandest scheme were turned back.

Even so, the broad lines of Ham ilton's achievements have been en thusiastically summarized in this way by a present-day historian: By 1792, largely as a result of the leadership assumed by Alexander Hamilton,. the heavy war debt dating from. the struggle for independence had been put in the course of ex tinguishment, the price of govern ment securities had been stabilized close to their face value ... , a Fed eral revenue system had been brought into being, a system of debt management had been created, the power of the .Federal government had been decisively asserted ... , and the credit of the Federal government had been solidly established. 4 Independence in a Hostile World The United States were depend ent upon European countries in the gaining of separation from England. The French alliance sup plied both the naval power and a considerable army for the winning of the most impressive .victory against the British on the Amer ican continent. That other nations were at war with or hostile to Britain made the American vic tory more· certain. The favorable treaty gained by the United States atParis in 1783 "ras made possible by the cross currents of animos ities and jealousies among Euro pean powers. The United States staved off bankruptcy time and again in the 1780's with loans ac quired in European countries.

One of the greatest tasks of the United States under the Constitu tion was to shake off the depend170 THE FREEMAN March ence upon Europe. Undoubtedly, European powers still viewed the United States as a potential pawn in their contests with one another. The French were inclined to the view that they had a special claim on both the good will of and spe cial favors from the United States. The British, on the other hand, could not view with equanimity anything short of such close re lations with the United States as that the old relationship of de pendence would be in some meas ure restored. The Spanish were not resigned to the dominance by the United States of the eastern portion of the continent. Nor would the United States be inde pendent of Europe until the Brit ish hold on ·the Great Lakes and the Spanish control of the Missis sippi were broken. The most alluring way out of the difficulties these things posed was for the United States to attach itself to some European power which would become their protec tor and champion their causes against all others. That is what, to a limited extent, had been done with France. But the French had been of very little help against Britain and Spain after the war.

Moreover, the changes in France after 1792, and the new European war which broke out, made the French connection an almost cer tain liability and would have linked the United States to gov ernments which not only changed frequently but also were tyran nical and oppressive. The course which Presidents Washington, Adams, and Jefferson chose suc cessively was independence from all these powers. But it was easier to choose such a course than to steer it. European Conflicts with American Repercussions The first crisis of the Washing ton Administration came when the French declared war on England, Spain, and Holland. The Franco American Alliance committed the United States to the defense of the French West Indies and not to render aid to France's enemies. Washington issued a Neutrality Proclamation shortly after the war broke out, stating that the United States was at peace with both Great Britain and France, and warning Americans not to commi ~ hostile acts against either side.

tJefferson had raised some doubt as to Washington's authority to do this, but he did not push the point. A few days before Washington made his proclamation, a new Min ister from France had arrived in the United States, a man known as Citizen Genet. Genet had no sooner arrived than he began to commission privateers from Amer ican ports to prey on Br~tish ship1973 STEERING A COURSE FOR THE NATION 171 ping. Washington warned him against this, but he persisted in similar activities, and the Presi dent eventually demanded his re call. In 1794 Congress passed a Neu trality Act, which confirmed Wash ington's earlier Proclamation, in effect, and put teeth into it. Al ready, relations with France had deteriorated considerably. When the United States came to terms with Britain in a treaty, they grew worse. The accord with Brit ain is known as Jay's Treaty; it was signed by the diplomats in November of 1794 and ratified by the Senate June 24, 1795. By this treaty, Britain agreed to and did shortly withdraw their troops from the posts on the Great Lakes.

It also opened up the East and West Indies to trade with the United States. A joint commission was appointed to deal with the debt claims, particularly of Brit ish merchants, which went back to colonial days, and a final settle ment was made in 1802. British trade with the United States was placed on a most favored nation basis, which meant that any trade concession granted to any other nation would also be granted to British traders. This treaty set tled most of the outstanding diffi culties between the two countries; but in view of increasing difficul ties with France, it was interpreted by that country as a slap in the face. On the heels of Jay's Treaty came Pinckney's Treaty with Spain in 1795. By its terms, Spain acknowledged the boundaries of the United States as being. those established by the Treaty of Paris (1783), agreed to the free navi gation of the Mississippi, and accordedthe right of deposit at New Orleans to Americans for a period of 3 years. By these two treaties the United States made great headway toward the practical at tainment of an independence of Europe which had been sought in the Treaty of Paris.

However, the French govern ment now posed increasing prob lems for the United States. It re fused to receive Charles C. Pinck ney as U.S. Minister to France when he arrived there in late 1796. Nor was the commission made up of Pinckney, John Marshall, and Elbridge Gerry, appointed by President Adams to negotiate a settlement, treated any better. The French government did not for mally receive them, and agents of the foreign minister, Talleyrand agents designated in dispatches as X, Y, and Z - suggested that the government would be happy to treat with them if they would pay a bribe and give France a loan. This XYZ affair stirred up much re sentment in America when it was 172 THE FREEMAN March made public in 1798. Many expect ed that France would go to war with the United States at any time. Adams initiated such meas ures in preparation for the con flict as he thought prudent. And, an undeclared naval war between the two countries did take place, 1798-1800. Meanwhile, Adams con tinued efforts to reach an accord with France. This was achieved in what is known in diplomatic his tory as the Convention of 1800.

France agreed to release the United States from the treaties made in 1778, and diplomatic re lations between the two countries were resumed. The Monroe Doctrine It would take us too far afield to go into any detail about the for eign relations of the next twenty five years under Jeffersonian Re publicans .. They were, however, pointed toward the following of an independent course in the world. This was· made extremely difficult by the Napoleonic wars which em broiled Europe for the first fifteen years of the new century. Both France and England continued pressure on the United States. The pressure of France however, was greatly reduced by the Louisiana Purchase. But the pressure of Bri tain led eventually to the War of 1812, which some historians have called the Second War for Independence. Perhaps the culmi nating symbolic move in the es tablishment of American Inde pendence was the Monroe Doctrine set forth in 1823. By it, President Monroe announced that the Amer icas were not subject to further colonization and by so saying at tempted to place the Americas off limits to the European quest for empire and to free this continent from the struggles of Europe.

During these early years of trial a set of principles for American conduct with other nations had emerged from pronouncements and practice. The following is a summary of them, stated as im peratives: The United States should • 1. Establish and maintain a po sition of independence with regard to other countries. • 2. Avoid political connection, in volvement, or intervention in the af fairs of other countries. • 3. Make no permanent or en tangling alliances. • 4. Treat all nations impartially, neither granting nor accepting spe cial privileges from any. • 5. Promote commerce with all peoples and countries. • 6. Cooperate with other coun tries to develop civilized rules of in tercourse. • 7. Act always in accordance with the "laws of nations." • 8. Remedy all just claims of in jury to other nations, and require 1973 STEERING A COURSE FOR THE NATION 173 just treatment from other nations, standing ready, if necessary, to pun ish offenders.

• 9. Maintain a defensive force of sufficient magnitude to deter ag gressors. 5 The Rise of Political Parties One of the unforeseen and, by some, unwished for developments in the early years of the Republic was the rise of political parties. No reference to any role for them was made in the Constitution. There had not been, as yet, any political parties in America; divi sions were occasional or tied to factional leadership of some man, as a rule. To formalize such dif ferences by organizing them into political parties would have ap peared the height of folly to many of the Founders. In fact, there was good reason to suppose that if the Republic did not founder on the shoals of foreign entangle ments it would split under the stress of partisan or factional con tests, as republics had tended to do in times past. George Washington, in his Fare well Address, warned the country "in the most solemn manner against the baneful effects of the spirit of party" generally. He declared that: It serves always to detract the public councils and enfeeable the public administration. It agitates the community with ill-founded jealous ies and false alarms; kindles the ani mosity of one part against another; foments occasionally riot and insur rection. It opens the door to foreign influence and corruption, which find a facilitated access to the govern ment itself through the channels of party passion. Thus the policy and the will of one country are subjected to the policy and will of another .

Washington admitted that the spirit of party arose out of human nature its~lf and was unlikely to be entirely extinguished, but he exhorted his countrymen that the "effort ought to be by force of public opinion to mitigate and as suage it."6 Washington had reason enough for his fears about the spirit of party. Even before he left office the lines of party were forming; his Cabinet had already experi enced the strain; and the country at large was about to witness some of the most acrimonious dis putes that have ever taken place. It should be noted, however, that as yet disputants did not ordi narily mount the stump to address the· people directly about their dif ferences. Attacks usually appeared in newspapers, and more· likely than not ifmaj or figures were in volved they wrote or had their cases presented under pseudonyms. Such· practices did not, however, promote restraint or prevent 174 THE'FREEMAN March breaks between individuals which were difficult to heal. They may well have had the contrary effect.

It is not difficult to see why parties and factions arise when men are free to hold and practice different views. Men simply do not see all questions from the same angle, and they do have, as indi viduals and groups, different in terests from one another. And, men ever and again are drawn to the conceit that what is to their advantage is also to the advantage of the generality of people. Those in power usually take a more gen erous view of the extent of their power than those who do not have such power. There is, undoubtedly, a general welfare, but men hardly discern it and focus upon it ex clusively in the course of their careers. Major Questions at Issue There were choices of course in plenty to divide Americans and provide the opportunity for politi cians to capitalize on them in the early years of the Republic. After all, the course of the nation was being set. Strong willed and deter mined men were placing their im print upon it. Small wonder that those favoring and those opposing certain courses of action should form opposing factions which even tually assumed more permanent status. How should the Constitution be interpreted? Should it be broadly or· strictly construed?

Should the powers of the general government be greater, or those of the states preserved and enhanced? In foreign affairs, should the French Revolution be supported? Or should the United States link its fortunes to those of Britain? Or, if the United States was to be neutral, would this not benefit one side at war to the disadvantage of the other? More fundamentally, were there not choices to be made between order and liberty, between reason and experience, and between the individual and the community? If this latter formulation poses the distinctions too bluntly, it never theless indicates configurations of belief toward which men tended. The two parties which emerged . in the 1790's were called Federalist and Republican. Alexander Hamil ton and John Adams are usually as sociated with leadership of the Federalist Party, which indicates also the early division in that party, division which in the course of time sundered it. New England was the center of the strength of the Federalist Party, but it had devotees throughout the country.

Thomas Jefferson and tJames Madi son were the leaders of the Repub lican Party, and the bulk of its strength was from Pennsylvania southward. The Republican Party was born in opposition, which prob1973 STEERING A COURSE FOR THE NATION 175 ably made it considerably more united than the Federalist, which was born in power and suffered in the beginning from the stresses of power. It is much easier to be united in opposition and adversity than in possession of power and . prosperity. Federalists vs. Republicans Though it must be understood that leaders of parties are not in perfect agreement, that men do not readily acknowledge either-or posi tions, that the following should not be taken as absolutes, Federalists and Republicans did tend to divide along the following lines. Federal i~ ts were more inclined to empha size the depravity of man, particu larly that of the generality of men, than were Republicans, though Madison readily declared man; to be a frail vessel, and Jefferson would not deny it. Federalists em phasized the importance of experi ence, tradition, awe, and venera tion, while Republicans were more hopeful about the benefits of rea son. Federalists inclined to be na tionalists (when they were in power), and the Republicans to favoring state's rights. Federalists tended toward mercantilism in eco nomic policy, while Republicans were much more favorably dis posed toward laissez-fa,ire. Feder alists favored industrializing, while Republicans wanted an agricultural economy with an emphasis on for eign trade. Republicans were much more favorably disposed toward France than were the British-lean ing Federalists.

It is not to the purpose of this work to devote much attention to these conflicts. What is important is that they were there and that political parties took shape around them as issues. Nor is it so im portant that when the Republicans were in power for awhile they be gan to abandon the policies they had championed and to advance some of those they had opposed. Being in power is a severe test of anyone's beliefs, and there are usu ally excuses enough in changing circumstances for altering them. What is important is that though political parties are extra-constitu tional they came to play an impor tant role in buttressing and main taining the Constitution. One of the checks and balances on government not conceived and contrived in the Constitutional Convention was that provided by political parties. Perhaps the great est check of all on those in power is provided by the opposition party and by its members who hold of fice, not the power of determining policies. If the party in power takes a generous view of the powers available to its members, the one out of power uses the limited pow ers doctrine as one of its reasons 176 THE FREEMAN March for opposing the extension of power. The Jeffersonians out of power opposed the Sedition. Act as unConstitutional. Federalists out of power opposed the Jeffersonian Embargo and defended state's rights. So it has frequently been throughout· American history. The strict construction doctrine would sometimes have few advocates without a minority party.

The Jeffersonians brought par ticularly important counter-bal ances to the Federalist emphasis. It probably was most useful that the early officials of the United States should have emphasized dig nity, respect for law, pomp, and even ceremony. But Jefferson was much more in keeping with the genius of America in his emphasis upon republican simplicity and in formality. Though the mercantile ideas of Hamilton may have served some temporary purpose, the Jef fersonians brought to the' fore newer, fresher, and freer economic ideas, and there was no doubt that Jefferson believed in paying off the debt. Albert· Gallatin, as J effer son's· Secretary of the Treasury, was a· remarkable' counterpart to Hamilton. He was equally brilliant, and his thought tended toward the freeing of enterprise. It may be of some use to quote him in a critique of the tariff system, a critique pen ned long after he had left the Treasury: Let it be recollected, that the sys tem is in itself an infraction of an essential part of the liberty of the citizen. The necessity must be urgent and palpable, which authorizes any government to interfere in the pri vate pursuits of individuals; to for bid them to do that which in itself is not criminal, and which everyone would most certainly do, if not for bidden. Every individual, in every community, without exception, will purchase whatever he may want on the cheapest terms within his reach.

The most enthusiastic restrictionist, the manufacturer, most clamorous for special protection, will,each in dividually, pursue the same course, and prefer any foreign commodity, or material, to that of domestic ori gin, if the first is cheaper, and the law does not forbid him. All men ever have acted, and continue, under any' system, to act on the same prin ciple .... The advocates of the tariff system affirm, that what' is true of all men, individually, is untrue, when applied to them collectively. We can not consider the adherence· of en.,. lightened nations to regulations of that description, but as the last relic of that system of general restric tions and monopolies, which had its origin in barbarous times. . ..7 Perhaps the greatest precedent set .in the early years of the Re public grew out of party divisions. That precedent was the peaceful change from one set of rulers to another. The congressional elec tions are so staggered that at no 1973 STEERING A COURSE FOR THE NATION 177 time would there be an entirely new Congress. Even more is it un likely that the personnel of the Federal courts would all change at any time. The one crucial branch, then, for the above and other rea sons, for a change from one group of rulers to another is the execu tive bruneh. There WUg no over-9Jl change in that branch until 1801.

Though Washington stepped down in 1797, there was a clear continu~ itybetween his administration and that of Adams, for the members of the Cabinet were continued. Not so, when Jefferson came into office as President. Party divisions and loyalties had become so strong and .determining, the feelings between Adams and Jefferson were so heated, that there could be no ques tion of Jefferson's continuing with Adams' Cabinet. Yet, for all the strong feelings, the change from Adams to J effersonwas made peacefully. And so it has been ever since: Americans have become so accustomed to the peaceful change of rulers (or governers, if one's sen sibilities are stirred by the other term) as not to remark it. Yet it is always a remarkable thing in history when a man with such pow ers yields them up to someone else without war. In a sense, our poli tical contests are a means of shift ing the conflict from the field of battle' to the arena of ideas and words. The contest is usually sharp, but the loser retires gracefully from the field.

The Two-Party System Were Washington's fears of parties groundless, then? Surely, they were not groundless; he could have called up much history in sup port of them. Nor did h~ ~xp~ct that America would be without such divisions; he hoped only for a mitigation of the harshness of them. And, it can be' reported that this occurred. Two major develop ments have made party contests less than seriously divisive, as a rule. One is that the United States has usually had only two major parties. A multiplicity of parties does tend to divide the country into irrecon cilable factions. Whereas, when there are only two major parties, they. tend both to contain many people of similar views in each of them and to try to attract any considerable faction not yet within the party. But why, it is asked, has the United States had only two major parties? Some have sup posed that the predilection to do this is peculiar to Anglo-Saxon peoples. But such an explanation is of most doubtful validity. The much more likely explanation is the winner-take-all practices, some in the Constitution, some added by the states. In elections to Congress, there is, as a rule, only one winner 178 THE FREEMAN March in a district and in a state. (On rare occasions, there occurs an elec tion of two Senators from the same state in the same election.

But in such a case, candidates run separately for the positions, since the term of one of the men elected would not be for the full six years.) The office of President is clearly a winner-take-all affair, and states have made this true for elec tors along party lines as well by giving the whole vote for electors to the party which attains a plu rality. The effect of this practice (as contrasted with proportional representation) is that only major paI:ties can sustain any consider able following over the years by patronage. And only two parties can reasonably expect to elect many to office. They do so, as a rule, only by appealing to a very broad elec torate. The other offset in the American system to the baneful effects of party is a little more complicated. Washington noted that in "govern ments of a monarchical cast" it is plausible to "look with indulgence, if not with favor, upon the spirit of party. But in those of the popu lar character, in governments purely elective, it is a spirit not to be encouraged."8 We can read be tween the lines of this a Iittle and almost certainly infer his meaning.

A land which has an hereditary monarch has continuity and stability. Governments change, cab inet officers come and go, a new election brings new members of the legislature, but the monarch remains. A republic, however, does not have this visible symbol of con tinuity and stability. When it is divided by parties, there is no man beyond these contesting groups to provide it. Yet the United States has had a sign and symbol - a vertitable rock - to give it con tinuity and stability. It is, of course, the Constitution. Washing ton may be pardoned for not fore seeing that it would serve in that office. The Constitution as Higher Law The most likely prognosis for the Constitution in 1789 was that in very short order it would become a dead letter. After all, it was only a "piece of paper," and power re- . sided in the' hands of men once the government was' organized. The ways by which it might have be come a dead letter are so numerous that only a few of them need be suggested. Once men had power in their hands, they might have gone their own way, using the Constitu tion only as a launching pad, as it were, to come to power, then ignor ing its restrictions. The states, on the other hand, might have made of it a nullity by so circumscribing the actual exercise of powers that the general government would be 1973 STEERING A COURSE FOR THE NATION 179 of no account. The President might have become a dictator. The Con stitution might have remained; all might have given it their vocal al legiance ; but none allowing it any effect on their actions.

We know, of course, that these things did not occur . Instead, the Constitution became, in fact, a Higher Law in the United States, a Constitution above constitutions, and a document to which men truly repaired for the resolution of vexed issues. That this occurred can be attributed to tradition, cir cumstances, andthe efforts of lead ing men. Americans had a tradition of higher law, and it needs here only to be briefly recalled. They· were a people of the Book, to whom the Bible was a higher law. They ac cepted, also, the belief that natural law was higher law. In the British and colonial traditions, they had re ceived the belief that certain basic documents constitute a higher law, Le., charters, covenants, declara tions, and acts of conventions. This is to say that Americans were pre disposed to the acceptance of a higher law, and they were especi ally sensitized to written laws.

The circumstances in which the Constitution was drawn and rati fied lent weight to the giving of a unique place to it. It had been drawn in convention by some of the most prominent men in America. This had been done behind closed doors and by way of debates to which the public at large was not pri vy. It had been ratified by spe cial conventions within the states by men chosen for the particular task. And, most of the prominent men in America came forth to serve in the government which it authorized. Course Set by Washington George Washington gave the full weight of his prestige to the Con stitution. He wanted only men in his government who were devoted to it, and in his appointments at tern pted to make this the first re quirement. His public pronounce ments were such as to add weight and authority to the document. In his First Inaugural Address, he referred "to the great constitu tional charter under which you are assembled, and which, in defining your powers, designates the objects to which your attention is to be given."9 ,He said in his Farewell Address that those entrusted with governmental powers should confine themselves within their re spective constitutional spheres, avoiding in the exercise of the pow ers of one department to encroach upon another. The spirit of encroach ment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. . . . If 180 THE FREEMAN March in the opinion of the people the dis tribution or modification of the con stitutional powers be in any particu lar wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one· instance may be the instrument of good, it is the cus tomary weapon by which free gov ernments are destroyed.l O Other men who were or would be Presidents uttered similar mes sages. James Madison said in 1792 : Liberty and order will never be perfectly safe, until a trespass on the constitutional provisions for either, shall be felt with the same keenness that resents an invasion of the dear est rights, until every citizen shall be an Argus· to espy, and Aegeon to avenge, the unhallowed deed.

Thomas Jefferson declared in 1793 : Our peculiar security is in the possession of a written Constitution. Let us not make a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no other than the definitions of the powers which that instrument gives. But it was John Marshall, as Chief Justice of the Supreme Court for 35 years, who raised the Constitution to the pinnacle as the Higher Law in the United States. Among the large number of decisions of the court written by Marshall, a goodly number were referred to the Constitution for resolution. Indeed, Marshall ap pears to have relished those in stances when he could make of the question before the court a con stitutional question. This judg ment is based on the fact that some of them could have been decided readily. on other than con stitutional grounds. Marshall made the Constitution very much a live letter, by making it avail able as law on which decisions could rest, by bringing Congress to heel, by bringing the states to heel, and by using it both as au thority and restraint. Marshall tried to make it clear always that those brought to heel were not brought to that posture by the court but by the Constitution. In Osburn v. U.S. Bank delivered in 1824, he said: "Judicial power, as contra-distinguished from the power of the law, has no existence.

Courts are the mere instruments of the law, and can will nothing."ll He viewed the Constitution as "intended to endure for ages to come," and made decisions de signed to ensure that it would. In Marbury v. Madison, deliv ered in 1803, Marshall declared that the Constitution limits the 1973 STEERING A COURSE FOR THE NATION 181 Congress. "The powers of the leg islature are defined and limited; and that those limits may not be mistaken or forgotten, the consti tution is written." When the .leg islature acts contrary to its con stitutional authority, its acts are not to be put in force. For, he said, "the particular· phraseology of the constitution of the United States confirms and strengthens the prin ciple, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void, and that courts, as well as other departments, are bound by that instrument."12 Upholding the Constitution In Fletcher v. Peck (1810), Marshall spoke for a unanimous court when he held that the states were restrained by the Constitu tion. He said that Georgia "is a part of a large empire; she is a member of the American union; and that union has a constitution, the supremacy of which all ac knowledge, and which imposes lim its to the legislatures of the sev eral states, which none claim a right to pass."13 Marshall could buttress his de cisions with the broadest princi ples, but he could also construe the Constitution with great attention to distinctions. For example, the case of Craig et. al., v. The State of Missouri involved the attempt to issue paper money by the state.

The state contended that since this money was not made legal tender, it was permitted. Not so, said Marshall : The Constitution itself furnishes no countenance to this distinction. The prohibition is general. It extends to all bills of credit, not to bills of a particular description ... The Con stitution ... considers the emission of bills of credit and the enactment of tender laws as distinct operations, independent of each other, which may be separately performed. Both are forbidden. To sustain the one be cause it is not also the other; to say that bills of credit may be emitted if they be not made a tender in pay ment of debts, is in effect, to ex punge that distinct independent pro hibition, and to read the clause as if it had been entirely omitted. Weare not at liberty to do this ... .14 Marshal/Is Great Contribution I t has been commonly said of l\tlarshall that in his decisions he construed the Constitution in a way to increase the power of the general government, that he was a nationalist, and that he built the power of the United States gov ernment at the expense of the states. This view contains some truth, obviously, but it is not the most important thing to say about him. It can also be truly said that Marshall by the tone and character of his decisions gave the central 182 THE FREEMAN March role in expounding the Constitu tion to the Supreme Court, but that is not the most important thing to say about him, for that posi tion can be and has been abused. What looms above all the other things he did as an enduring contribution is that he looked to and raised the Constitution to the position of Higher Law - a law to which courts, congresses, presi dents, andsta tesm ust yield.

Above all, he professed to be bound by the Constitution. "This department," he said, "can listen only to the mandates of law, and can thread only that path which is marked out by duty."15 The Su preme Court arose to high regard not because people believed that the Constitution was what the court said it was but because they believed that the court spoke not the will of its members but sub: mitted their wills to the Constitu tion. John Marshall made such a view credible. The course of the nation was set in the early years of the Re public. The credit was established, and men came to believe that the obligations of the United States would be met. The United States adopted and followed an independ ent course in the world. The gov ernment was further checked and balanced by political parties. And the Constitution achieved a special place as a Higher Law binding all Americans. I) • FOOTNOTES • 1 Richard B. Morris, Alexander Ham ilton and the Founding of the Nation (New York: Dial Press, 1957), pp.

290-9l. 2 Nathan Schachner, The Founding Fathers (New York: Capricorn Books, 1954), p. 187. 3 John C. Miller, The Federalist Ern (New York: Harper and Row, 196U), p.66. 4 Ibid., pp. 68-69. 5 Clarence B. Carson, The American Tradition (Irvington: Foundation for Economic Education, 1964), p. 212. 6 Henry S. Commager, Documents of American History (New York: Appleton Century-Crofts, 1962, 7th ed.), p. 172. 7 E. James Ferguson, ed., Selected Writings of Albert Gallatin (Indiana polis: Bobbs-Merrill, 1967), pp. 438-39. 8Commager, op. cit., p. 172. 9 Ibid., p. 152. 10 Ibid., pp. 172-73. 11 Quoted in Edward S. Corwin, The Constitution and What It Means Today (New York: Athenaeum, ·1963), p. X. 12 Commager, op. cit., pp. 193-95. 13 Ibid., p. 206. 14 Ibid., pp. 252-53. 15 Ibid .. p. 253. Next: The Beacon of Liberty A REVIEWER'S NOTEBOOK JOHN CHAMBERLAIN IN THE EARLY Nineteenth Century William Miller, using Scripture for his authority, confidently pre dicted the end of the world would come in 1843. He had thousands of disciples. When the year of doom passed and nothing happened, he revised his calendar: the funeral date for humanity on this earth would coincide with the Second Coming of Christ in October of 1844.